of the court in Powell v. Rousseau, 38 R. I. | pearing that the court intends to do any act 294, at page 300, 94 Atl. 867, at page 869, in which the court said: "The justice does not suggest in his decision that in his opinion the jury were influenced by any improper motives. It appears simply that he would have arrived at a different conclusion from that of the jury. We are forced to hold that we find nothing in the evidence or in said decision which would justify us in accepting the estimate of the judge rather than that of the jury upon this question, which is so clearly within the jury's province to determine." The matter then under consideration, with reference to which said language was used, was as to an estimate made by the justice presiding of the probable cost to a father of maintaining a child from early youth during the period of her minority. It appeared in that case that the estimate of said justice was not based upon the evidence, but rested entirely upon his own experience. The situation here differs essentially from that presented in Powell v. Rousseau. Here we have the judge's view, based upon evidence, of the amount of damages which would be just compensation for the injury which had been established by the preponderance of the evidence. Being of the opinion that the amount of the verdict was unfair, said justice properly set it aside and ordered that, unless the plaintiff would accept a sum which the evidence warranted, he would refer the matter to another jury for determination. We have examined all of the evidence, and are of the opinion that the sum of $800, arrived at by said justice, is liberal compensation for the injury which the evidence fairly shows the plaintiff suffered as a result of the accident, and that a larger award would be granted only upon a basis of physical injury, which the plaintiff has entirely failed to establish. without jurisdiction or in excess of jurisdiction, and it not being presumable that the court will grant the petitions if, upon hearing, the facts show it has no jurisdiction. 2. PROHIBITION ~3(5) — ADEQUATE REMEDY BY APPEAL. Prohibition does not lie to restrain a court from hearing petitions prima facie within its jurisdiction, where it appears that, if the petitions should be improperly granted, the remedy of appeal would be adequate. Petition by Edmund Cloutier for prohibition against George N. Vidal. Petition denied and dismissed. Archambault & Archambault, of Providence, for petitioner. Felix Hebert, of Providence, for respondent. PER CURIAM. The respondent moves to dismiss the above-entitled petition for a writ of prohibition on various grounds. After argument on said motion by counsel for the parties, we are of the opinion that the motion to dismiss must be granted for the reasons: [1] 1. That it nowhere appears that the probate court of West Warwick is intending to do any act without jurisdiction or in excess of its jurisdiction; the only action that it appears to be about to take is to give a hearing upon petitions for adoption of minors which upon their face appear to be within its jurisdiction. 2. That this court will not assume that the probate court of West Warwick will grant said petitions if the facts which shall appear upon such hearing thereof shall show that it has no jurisdiction. and all other parties having a legal interest [2] 3. That it appears that the petitioner, in said petitions, have an adequate remedy by way of appeal from the decrees of said probate court, in case they see fit to avail them The exceptions of both plaintiff and defendant are overruled. The case is remitted to the superior court for a new trial unless the plaintiff on or before July 7, 1919, shall in writing filed with the clerk of the supe-bition where there is an adequate remedy by This court will not grant a writ of prohirior court, remit all of said verdict in excess selves thereof. Petition for a writ of prohibition is denied and dismissed. of $800. If on or before said date the plain- appeal. (107 A.) 2. APPEAL AND ERROR 1005(2)-Grounds—| SUFFICIENCY OF EVIDence. "(1) Both parties to this contract hereby agree that the contract made by and between In assumpsit to recover an amount due for Jean M. McNeil and Connor & Syme on the labor and materials furnished in the erection 14th day of September, 1914, shall be supersedof a dwelling house for defendant, where courted entirely by this agreement, and that each felt constrained to deny a new trial for fear on- of the parties hereto shall not in any way hold ly that he had no power to invade province of each other liable in any manner upon the said jury, and the evidence was insufficient to au- contract or upon any of the circumstances aristhorize the verdict, appellate court will granting out of the manner of the execution of the new trial. said preceding contract. "(2) The party of the first part hereby prom Exceptions from Superior Court, Wash-ises and agrees to employ the party of the secington County; Chester W. Barrows, Judge. Assumpsit by David Syme and others against Archibald McNeil and others. Verdict for plaintiffs, a new trial was denied, and defendants except. Exceptions sustained, and case remanded, with directions. Herbert W. Rathbun and John J. Dunn, both of Westerly, for plaintiffs. ond part to complete the dwelling house which is being erected for the party of the first part on a plot of ground located in Musicolony, town of Westerly, state of Rhode Island, and to pay him therefor the sum of six dollars ($6) per day for the supervision of the said work and for all work that he shall perform in the execution of this contract. "(3) The party of the first part agrees to pay for all of the materials and labor which shall Fitzgerald & Higgins and Wayne H. Whit-be used upon this work and to pay for them man, all of Providence (William H. Camfield, of Providence, of counsel), for defendants. promptly upon their presentation to her, with the O. K. of the party of the second part. "(4) The party of the second part hereby agrees, in consideration of the promises and agreement hereinbefore set forth, to carry to completion the aforesaid building for the compensation of six dollars ($6) per day for every working day between now and the date of the completion of the said building. "(6) Both parties to this contract hereby agree that the said building shall be entirely completed not later than the 1st day of May, 1915. VINCENT, J. This is an action in assumpsit, brought to recover an amount alleged to be due to the plaintiff Syme on account of labor and materials furnished in the erection of a dwelling house situated at a place called Musicolony, in the town "(5) The party of the second part hereby of Westerly, R. I. The case was tried to agrees to keep a record of all moneys expenda jury in the superior court, and a verdicted, either for labor or for materials, and to present correct bills for the same promptly to the was rendered for the plaintiffs in the sum party of the first part. of $4,113.72. The defendants' motion for a new trial was denied. The case is now before us upon the defendants' exceptions to the rulings of the trial court: (1) Refusing to strike out certain testimony; (2) to the refusal to direct a verdict; and (3) to the denial of the defendants' motion for a new trial. On September 14, 1914, a contract in writing was entered into between Connor & Syme, contractors, and Archibald and Jean McNeil, whereby it was provided that the plaintiffs should erect, for the defendant Jean McNeil, a house at Musicolony in accordance with certain specifications, which were made a part of said contract, at a total cost of $4,500. From the date of the contract, September 14, 1914, to December 24, 1914, Connor appears to have had the active management, supervision, and control of the work. On and after December 24, 1914, Connor seems to have vanished so far as his further connection with the work was concerned. On the 20th of February, 1915, following the elimination of Connor, Syme and Mrs. McNeil entered into a new contract for the completion of the work, as follows: "This agreement, entered into this 20th day of February, 1915, by and between Jean M. McNeil, of the city of Bridgeport, county of Fairfield, and state of Connecticut, as party of the first part, and David Syme, of Westerly, Rhode Island, party of the second part, witnesseth: "(7) Both parties to this contract agree that all of the trim used in said building shall be furnished by R. A. Sherman's Sons Company, and that the same shall not exceed the sum of one thousand (1,000) dollars, and shall contain all such items as were specified in the statement on October 6, 1914, by the said R. A. Sherman's Sons Company to Bloodgood Tuttle. "In witness whereof, the parties have hereunto set their hands and, seals the day and date first above written. "Jean M. McNeil, "By Archibald McNeil. "David Syme." It will be observed that, by the terms of this agreement, especially the first clause thereof, the earlier agreement of September 14, 1914, between Connor & Syme and the defendant Jean McNeil was entirely superseded, abandoned, and annulled, and the parties thereto became divested of any rights whatsoever thereunder. The matters of which the plaintiff Syme now complains, and upon which he now seeks a recovery in the present suit, occurred prior to February 20, 1915, the date of the agreement abrogating the first agreement of September 14, 1914, and he would therefore be powerless to sustain his action, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes so long as the former agreement remained (urally feel that the chances for obtaining effective. In order to clear from his path- the payment of the Sherman Company acway this obstructing agreement, the plain-count would be greatly enhanced by a recovtiffs pleaded that it was obtained by the fraud and false representations of the defendants and through the mistake of the plaintiff Syme. There was no evidence offered as to mistake. The plaintiffs, at the trial, undertook to show a deliberate fraud on the part of Mr. McNeil at the time the agreement of February 20, 1915, was exe cuted. ery in this suit. Even under the influence of a self-interest, the testimony of Mr. Sherman, taken as a whole, is not convincing as to the alleged promises of Mr. McNeil. After stating that Syme showed to McNeil a list of outstanding bills to the amount of some $3,000 or $4,000 he goes on to say: At that time, after a little discussion, McNeil told Mr. Syme that he would enter into a new agreement with him, and he refused to pay the matter of $3,000 to us, which was represented by notes from Syme to our corporation. He told Mr. Syme that he wanted him to continue the work, and that at the end of the job he would see that all outstanding accounts against the job were paid," "Mr. McNeil told Mr. Syme that he realized that the job was going to cost more than it The charge of fraud set up in the replica- was originally contracted for. He was-didn't tion of plaintiffs is to the effect that the want to have him lose any money, and he wantrelease was obtained by fraud and misrep-ed to make a new agreement to have Mr. Syme resentation, by which the defendants false- continue the work. ly and fraudulently represented to the plaintiffs that, if they (the plaintiffs) would execute and sign the release, defendants"would pay all bills contracted on account of the erection or repair or addition to that certain building or dwelling of said defendants, or work done incident to the same, and that after the signing of said release they (said plaintiffs) would and should proceed to finish the work on said house, and all sums due at the time of the execution of said release would later be paid, to wit, at said Westerly, wherefore the said plaintiffs say that the said release in said plea mentioned is void in law." Mr. Syme had comparatively little to do with the carrying out of the contract prior to the agreement of February 20, 1915, between himself and Mrs. McNeil. Although work was commenced about September 18, 1914, it was not until the early part of February, 1915, that Syme made the acquaintance of Mr. or Mrs. McNeil, and he had never seen them on or about the property previous to that time. Connor withdrew altogether from the firm of Connor & Syme about December 24, 1914, and was in no way associated with the matter thereafter. He did not appear as a witness at the trial. It was the retirement of Connor that brought Syme into action and led to the new arrangement between him and the McNeils, looking to the completion of the work, expressed in the release and contract of February 20, 1915. Later Mr. Sherman says: "I think that list of bills had a direct bearing on the matter under discussion." But he is not positive that Mr. McNeil made any statement relative to those particular bills, which amounted to some $3,000 or $4,000; that he cannot recall any conversation directly referring to that sum of money, and that he only has a clear recollection that Mr. McNeil said he would "pay all accounts on completion of the job." By the new contract, entered into on February 20, 1915, Syme was to superintend the work at a fixed compensation per day and Mr. McNeil was to pay for materials Inasmuch as Mr. McNeil had and labor. positively refused, as Mr. Sherman states, to pay his company the $3,000 due for lumber used in the building, it is not probable that, in using the language which Mr. Sherman attributes to him, he intended to promise anything more than that he would pay such bills as should be outstanding at the completion of the job and under the new At the time when this contract was exe- contract. When Mr. Sherman says, "I think cuted, Mr. Syme states quite positively that that list of bills had a direct bearing on the he signed it upon the express undertaking, matter under discussion," he is simply staton the part of Mr. McNeil, that he (Mcing an impression which, so far as appears, Neil) would pay outstanding bills. Mr. is not justified by anything which Mr. McCharles E. Sherman, president of the R. A. Neil said. Mr. Sherman finally says, reSherman & Sons Company, testified that ferring to the list of bills which Mr. Syme he was with Syme at the time of his inter- had: view with McNeil relative to the contract of February 20, 1915, and heard the conversation between the parties. The Sherman Company was a creditor to the amount of some $3,000 for lumber furnished for the house in question. As Connor had disappeared and Syme was not a person of finan "I am not absolutely positive as to any statement he made relative to these particular bills." As before stated, Connor retired from the firm the latter part of December, 1914, and the work was carried on by Syme after Connor left down to February 20, 1915, when (107 A.) ductions, bringing the claim down to $4,113.72, do not appear. The jury, after be ing out for a time, returned for instructions, desiring to know the amount the plaintiff claimed to be due him, and were informed by the court that it was $4,113.72, and a verdict for that sum followed. that time McNeil made no payments to | for commissions was waived. The other deSyme. It would seem, therefore, that on February 20, 1915, there must have been outstanding bills which had been incurred by Syme in his prosecution of the work after Connor had quit both the job and the firm. That being so, it is possible, assuming that McNeil at the interview of February 20, 1915, preceding the execution of the agreement of that date, uttered the words attributed to him by Syme, that he may have referred to the later bills contracted by Syme subsequent to the retirement of Con nor. It is somewhat significant that at the time of the execution of the new contract, or immediately following it, McNeil paid outstanding bills to the amount of $3,245.07, and that on February 11, 1915, nine days prior to the new contract, Mr. Tuttle, the architect, who was a witness for the plaintiff, had written Mr. McNeil: "If you will be able to send Mr. Syme $2,000 to take up his note in Westerly, and $1,161.75, he will be able to complete the job and pay all bills." Mr. Tuttle had previously, on December 29, 1914, written Mr. McNeil: "I visited Musicolony Thursday and managed to get most of the bills for labor, etc., paid up." The payment by Mr. McNeil of $3,245.07 on February 20, 1915, for outstanding bills, taken in connection with the letters of Tuttle, the architect, above quoted from, makes it difficult to see how other bills to the amount of $4,113.72 could have been outstanding on February 20, 1915. Mr. Syme claims that most of this amount is for extras. The architect's certificate showed $539.10 due on December 24, 1914, with nothing expended for extras. If the claim, which is the subject of this suit, is valid, there must have been due upon this house, on February 20, 1915, $7,358.79. Why and for what such a sum was required does not clearly appear. The note of Syme to the Sherman Company could not be included to make up the sum covered by the alleged agreement of Mr. McNeil to pay outstanding bills, because he had positively refused to assume that obligation. Mr. McNeil and Mr. Farron, his counsel, the latter being present during a considerable portion of the interview, both deny that there was any statement made by Mr. McNeil to the effect that he would pay the bills which were outstanding on February 20, 1915. The declaration consists of the common counts, and is supplemented by a bill of particulars embracing various items to the amount of $5,835.69. The item of $1,257.74 107 A.-6 Up to December 24, 1914, McNeil had paid to Connor & Syme $3,906.90. This money passed into the hands of Connor, as a member of the firm of Connor & Syme. There is no evidence as to what he did with the money. There is nothing to show that it was used in the payment of any bills for work or materials which went into the erection of this house. For aught that appears, Connor may have retained it, and later appropriated it to his own use on retiring from the firm, claiming it as his share of the partnership effects, or he may have applied it in some other way, not in reduction of the outstanding bills for which claim is now made. If this amount of $3,906.90 was not appropriated to the payment of bills contracted in the erection of this house, the alleged claim of the plaintiffs would be correspondingly reduced. The trial justice, discussing the case in his rescript upon the defendants' motion for a new trial, expresses his dissatisfaction with the verdict in several particulars. He says: "The evidence disclosed a situation in regard to the contract and specifications which rendered it impossible to know what was included in the written contract. The question of extras had to be determined entirely from the testimony of Tuttle and Syme. We do not believe Syme had any clear idea of extras. If plaintiffs' verdict rested upon this evidence alone, it should not stand." In speaking of the alleged promise of McNeil on February 20, 1915, to pay outstanding bills, the rescript says: "The court was inclined to believe that McNeil did not make an absolute promise, nor intend to make an absolute promise, that he would pay all outstanding bills against the job, and that his promise was not as absolute as Sherman and Syme remembered it. Neither Syme nor McNeil knew anything about the use to which the money ($3,906.90), paid to Connor had been put, nor whether that money had been applied to the job. An agreement such as McNeil is said to have made would have been unusual for a business man of McNeil's experience"-the court adding, although it might be "consistent with McNeil's impatience about the job and his honest desire to pay for what he got, even though he felt that he was being imposed upon." The rescript further says that "Syme's testimony as to what took place on his visit to Mrs. McNeil is evasive and unsatisfactory. In fact, Syme's whole testimony was not altogether candid. He had suffered financial loss and been imposed upon, and, uncertain just where to lay the blame, was seek- STATE v. FRANK W. COY REAL ESTATE ing to place it upon some one other than himCO. et al. (No. 445.) self." In referring to the agreement of February 20, 1915, sometimes called the release, the court said: "We cannot agree with the jury's finding on the question of fraud in procuring the release." The trial court finds a (Supreme Court of Rhode Island. June 19, 1919.) 1. HIGHWAYS 159(2) INJUNCTION-EVIDENCE. OBSTRUCTION Allegations of bill by the state to enjoin respondents from obstructing and interfering with public travel on a certain shore road in a town held sufficient to maintain it on the ground of estoppel in pais, and on the principle of dedication. AMENDMENT OF BILL. "confirmation for the jury's finding in the unfavorable impression created by Mr. McNeil. 2. EQUITY 269-DISAVOWAL OF CLAIMHe acted in a testy manner on the stand and wag impatient. * * * This manner was probably due, as he said, to the fact that it was his first time in court after a business experience of something over 50 years." In suit by the state to enjoin obstruction and interference with public travel on a shore road in a town, the Attorney General, to make good his disavowal of any claim to subrogation to the rights of the town, and consequent relief The trial court further accounts for the based thereon, should amend his bill by striking verdict by saying that "Mr. Syme was a small carpenter, who faithfully did his work and was victimized either by Tuttle or Connor, or both, and it was not unnatural, under the circumstances, that the jury should have felt a very strong sympathy for his position. * The case on the facts, therefore, is one where we should like to, but do not, feel warranted in granting a new trial." [1] From these excerpts from the rescript of the trial judge his estimate of the verdict is readily discernible. He felt constrained to deny the motion for a new trial in order to avoid any infringement upon the province of the jury, whose duty it is to determine the facts, perhaps overlooking the power of the superior court to grant new trials whenever its superior and more comprehensive judgment teaches it that the verdict of the jury fails to administer substantial justice to the parties in the case. McMahon v. Rhode Island Co., 32 R. I. 237, 78 Atl. 1012, Ann. Cas. 1912D, 1223. out such allegations and prayers as relate solely to the claim of subrogation and the relief claimed on that ground. Appeal from Superior Court, Washington County; Willard B. Tanner, Judge. Suit by the State of Rhode Island against the Frank W. Coy Real Estate Company and others. From decree sustaining respondents' demurrer to the bill, and dismissing it, complainant appeals. Appeal allowed, decree reversed, except in part, and cause remanded, with direction that respondents be required to answer. See, also, 103 Atl. 484. Herbert A. Rice, Attorney General, for the State. John J. Dunn, of Westerly, and Waterman & Greenlaw, Lewis A. Waterman, and Edwin J. Tetlow, all of Providence, for appellees. PER CURIAM. The above cause is now before this court upon the complainant's appeal from a decree of the superior court, entered January 18, 1919, sustaining responddemurrer to the amended bill of complaint and dismissing that bill. [2] While the denial of the motion for a new trial may be said to be a formal approval of the verdict, it is evident from the re-ents' script that the verdict, in the opinion of the trial court, failed to do justice between the parties, and would have been set aside, had the court felt that it was possessed of the power to do so. The conclusion of the trial judge, therefore, cannot be given the weight and consideration to which it might otherwise be entitled. Campbell v. Cottelle, 38 R. I. 320, 95 Atl. 665. We are of the opinion that, in the interests of justice, the case should be submitted to another jury. The defendants' first and second exceptions are overruled. The third exception to the denial of the motion for a new trial is sustained, and the case is remitted to the superior court, with direction to give the defendants a new trial. The amended bill prayed for an injunction to restrain the respondents from obstructing and in various ways interfering with public travel upon a certain road known as the "Shore Road' in the town of Westerly. It also prayed that the complainant be declared to be entitled to be subrogated to the rights and duties of the town of Westerly under a certain agreement referred to in the bill as a part thereof (Exhibit A), and contained certain other prayers for relief which it claimed that the complainant, if so subrogated, would be entitled to have enforced against the respondents, in the nature of a specific performance of the said agreement (Exhibit A) between the town of Westerly |